I just got the trial court opinion in Kik v. Kik, the latest Michigan appellate case that counted a parent's greater religious observance as a factor in favor of the parent's custody claim. Here's what the trial judge wrote about this:

As far as religion, the testimony indicates that the child was baptized at Saint Paul's in Big Rapids which is where the parties were married. The Plaintiff testified that religion was an important factor to both parties when they were first married and both felt strongly about raising [their daughter] in the church. The Plaintiff also admitted that after they were married it was a struggle for them to attend church, however, since the separation the Plaintiff has been more consistent with attending church and taking [the daughter] with him on a regular basis. The Plaintiff attends church every week at Saint Mary's of the Woods Catholic Church in Kalkaska and takes [the daughter] with him to church on a regular basis. The Plaintiff's testimony and actions appear to be sincere in raising [the daughter] in the church.

The Defendant testifies that she also attends church at Saint Paul's in Big Rapids which is where [the daughter] was baptized. The Defendant testified that she was more regular in attending church during the summer, however, has not been regular in attendance during the winter months. The Defendant testified that she has allowed [the daughter] to make the decision as to whether or not she attends church. However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child [who was 3½ at the time of the decision]. The Plaintiff testified that the Defendant has admitted to him that she does not take [daughter] to church on a regular basis and does not feel that it will make a difference.

Although the parties struggled to attend church while they were married, the Plaintiff appears to be more consistent in attending church with [the daughter] on a regular basis now that the parties have separated. The court must remain neutral with respect to each of the parties['] religious beliefs, however, both parties agreed that religion was an important factor when they were first married and when they started their family. Since the parties have separated, the Plaintiff is the parent who has actively participated in [the daughter]'s religious upbringing while the Defendant has allowed [the daughter] to make the decision on whether she attends church....

As to raising [the daughter] in her religion, the Court concludes that this factor favors the Plaintiff.

Now I realize that the judge said she was remaining neutral with respect to the parties' religious beliefs — but I think that this decision was not neutral, and was based on favoritism (which, I think, violates the Establishment Clause) for the more religious parent.

To begin with, note that this is not a case where continuity of religious upbringing is valued simply because it prevents disruption for the child. I can imagine why a child who is closely involved with her church would be hurt by being separated from church activities and from her church friends. But here there's no evidence to controvert the mother's claim that the daughter prefers not to go to church often, and no evidence to suggest that this reduced churchgoing is causing disruption in the daughter's life.

Also, this is not a case where the court is enforcing a contract providing for the religious upbringing of the child. True, the parents apparently "agreed that religion was an important factor ... when they started their family." But there's no evidence that the parents entered into what they reasonably saw as a binding contract. Not every understanding or plan is seen by the parties as a binding contract, and that's good; we can value lots of things and plan lots of things without surrendering our rights to change our minds.

And this right to change one's mind is especially important for religion, a subject on which people do often change their minds. One's religiosity, and one's perception of the importance of religiosity to one's children, may well change. The divorce itself may shake one's faith in God (especially if one is Catholic). Seeing one's child grow may deepen one's religious beliefs or weaken them. Seeing how one's child behaves may change one's view about whether the child is getting something valuable out of organized religion. The pressures of everyday life may change one's perception of how much of one's scarce parenting time and energy one should devote to organized religion. And of course sometimes people may have religious epiphanies. One should not lightly infer a promise to maintain one's religious practices (or the nature of the upbringing one plans to give one's child) from a past general agreement that religion is an important factor.

What's more, note that the judge wasn't purporting here to enforce a contract between the parties. She was just deciding what was in the child's best interests. Even if explicit contracts to raise a child in a particular religious manner should be upheld (and I'm inclined to say they can be, if this can be done with a minimum of entanglement with theological questions, but that's a matter for another day), there's no reason to think any such enforcement was taking place here.

So what we have here is a judgment that, once two parents generally agree to raise a child religiously, it's in the child's best interests to continue that upbringing — even when one parent changes her views about religion, or about the importance of organized religious observance, and even when there's no particularized evidence that this child is seeing the change as disruptive. On other matters, I take it, a court wouldn't take the same view: One wouldn't hold it against a parent that she acceded to the 3½-year-old's request to stop taking ballet lessons. But as to religious practice, the one area where governmental coercion poses the greatest constitutional problems, the judge was holding a parent's change in attitude and behavior against that parent.

Once a child is being exposed to organized religion, the reasoning seems to go, it's in the child's best interests to continue this exposure, even when the child isn't interested, when stopping the exposure isn't causing disruption, when one parent thinks the exposure is unnecessary, and when the other parent would be free to expose the child himself during his time with the child. I can't see how that is consistent with the Establishment Clause principles that the government generally may not prefer religious behavior over secular behavior, and that the government may not coerce people into engaging in religious practice.

Perhaps the decision wasn't this particular trial judge's fault, given what seems to be the Michigan state legal principles that push in this direction. But it seems to me unconstitutional nonetheless.

UPDATE: Several commenters suggest that the mother was properly faulted for not living up to her supposed values, because she has supposedly been saying one thing (church is very important) and doing another (not taking the child to church regularly). I'm not sure that this would be a sensible position for the court to take, but before we can evaluate that, wouldn't we need to see some specific evidence that the mother is being inconsistent?

I see no such evidence in the trial court opinion. There's evidence that mother once thought church attendance was important. But now it seems that she "does not feel that it will make a difference" to the child, and in fact doesn't attend church regularly. Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. That's hardly evidence of inconsistency, hypocrisy, or failure to live up to claimed values.

I completely agree. The court tries to disguise its decision as religion-neutral, but it's definitely favoring religion. And that religion is Christianity. If this had been the Church of Satan instead of the Church of Jesus, you can bet your ass the court would have decided the issue the other way, even without any factual findings that the Church of Satan's teachings are objectively bad for a child.

Of course, I think religion is bad for children, the Bible is the most violent book I've ever read (to be fair, most Christians and Jews never read the bible so they have no clue what's in it other than a few quotes about homosexuality being bad and crap like that). If I were the judge, I would have made a finding that religion is bad for children and given the less religious parent primary custody. Notice that the court here made no finding that religion (in general or the one these parents subscribe to) is actually a good thing - it just presumes that it is because the judge assumed everyone loves religion and agrees that it is good for growing little minds. Some of us in this country (ask Bill Maher) vehemently disagree, however.

What does a kid that age get out of church, anyway? I remember the experience as an hour of looking into the back of someone else's sport coat -- nothing more. I had absolutely no clue what was going on.

Second, someone had to win the case, and this is as reasonable as any other excuse when both are basically decent people. There is no mention of either parent being bad for some other reason.

But the Constitution does not allow this to be an excuse. If I were a judge and felt free to ignore the Constitution, I would count a parent's religious belief as a negative factor. But a judge should not ignore the Constitution.

BruceM has a point (and I awfully strong on not wanting government involvement in religion, to the point that I object to not only the creche on the common, but even the reindeer), by I'd counter that this is no less neutral than if both parents had agreed to give the child music lessons, and Dad managed to get her there every week, but Mom didn't bother when it was raining.

I'm a parent. I know it's a struggle, and some things go by the wayside. A lot of things I and my late wife chose to be lax with (eg we don't insist they dress "modestly"), but there are plenty of other things we would have insisted on if we didn't have limited resources forcing us to choose our battles. (Eg I believe getting them to school regularly and on time is important, but if I've got to get to a morning meeting I might let a kid malinger even if he isn't actively feverish or puking or displaying a broken leg, because it's just too much work to drag him out of bed, force the clothing on, etc.) If with these attitudes my wife and I were divorcing and fighting for child custody, I would object if a court said "You ought to be dressing them like Mennonites, same as your ba'al t'shuva spouse" but I wouldn't object (directly) if the court said "Your former spouse manages to get them out of bed and in school every day, but you haved failed to do that 40% of the time, points to former spouse."

Again, this is not the same as Spouse A gets the kid to public school every day, and Spouse B teaches the kid 7 hours per day at home. That's a choice, not a failing.

In this case, both parents said it was a good thing for the child to go to St. Paul's, but the father was doing a better job of it. The court was using, for this factor, a criterion about which the parents had no disagreement.

I go against most posters. What the judge ruled on was that church was agreed to by both parties as a constant in their childs life. I Know that constants in raising any child to be an invaluble asset. In this case the constant is church. It could have been music. both agreed, but did not carry thru. now one parent has picked up and started to sress music, and lessons, etc. It could be soccer and dance, or scouting, or 4-H. any number of things. The important thing here is that the judge ruled that the child would be better off with a constant in their life, especialy since the constant of marriage no longer is. And I thing BruceM would not be a good judge if his personal opinion would override rational thought

Says who? Since when? This is not a case between a citizen and the government, it is between two citizens with the same faith. One does a better job of practicing it than the other. It is an objective measurement. The judge had to decide one way or another, and this objective measurement is as good as any other for deciding which parent is better at organizing time and preparing the day and thus looking out for the child.

Hey, I'm an atheist, I have little sympathy for church going, but the reality is that there is nothing new about this and it really is no big deal in itself. What's more remarkable is that the man got custody.

Now I realize that the judge said she was remaining neutral with respect to the parties' religious beliefs -- but I think that this decision was not neutral, and was based on favoritism (which, I think, violates the Establishment Clause) for the more religious parent.

If this is what passes as legal thought today, then it is no wonder that Humpty Dumpty is in charge of the Constitution.

When I use a word,' Humpty Dumpty said, in a rather scornful tone,' it means just what I choose it to mean, neither more nor less.'

Regarding the several-times made analogy of music classes to religion - the underlying reality is that the establishment clause says nothing about music. However, it is probable that the analogy informed - consciously or not - the Judge's decision. On the other hand, Family Court has traditionally been immune to disturbance by constitutional trivialities like the equal protection clause. so why expect this case to be different.

Iowan brings up a good point above, that perhaps providing a constant in the child's life was the underlying judgement. But since IANAL, can anyone who has experience in this type of law confirm whether this is a legitimate basis for ruling?

Rock Chocklett and iowan: There are objective facts that prove beyond any doubt that religion is bad. Go read some Dawkins and Hitchens and Harris. Every social problem the world is currently dealing with stems directly from religion. Religion offers no benefit to mankind, and when humanity finally does destroy itself, it will be due to religion. Anyone who tries to prove that religion is good can do no more than offer platitudes and cite actions which appear generous and benevolent but are meant to convert others (i.e. "here homeless starving person, if you want some food you have to come here and study the bible with us"). It's like a public corporation donating money to charity - it's advertising and generating goodwill towards the brand name. If it were not, then giving away corporate funds would be a breach of duty to the corporation's stockholders. Same with religions - don't tell me religions do good because they pretend to help desperate people in bad situations... they only do it in order to get more converts, which means more power and more money for the religion.

iowan, rational thinking in this case would mean the less religion the child is exposed to, the better it is for the child and for society as a whole. Give me one rational reason why, all else equal, more religion is better than less religion for a developing child (or a person of any age for that matter). And don't assume I'm talking about your religion. Assume I'm talking about a religion other than your own, or else you won't be able to fairly answer my question.

1) In fact the court, despite claiming to be neutral, was treating positive religious belief in a different manner than it would atheism. This requires a judgement about the hypothetical behavior of the court and I don't really know how to make it but if true suggests a problem.

2) The court was genuinely being neutral in the sense that if (in the unlikely event that) my fiance and I had a kid the court would recognize that we both viewed atheism as an important factor in the child's upbringing and thereby weigh any church attendance against the parent who choose to do so.

In this later case the court was not prefering religious behavior to secular behavior. The fact that you happen to think it's important that the law treat feelings about religion the same as it treats feelings about ballet, i.e., not put great weight on past intentions, doesn't raise that consideration to a constitutional principle. It's quite clear that the court would be treating any sort of religious belief/nonbelief symmetrically in this case and the fact that what the court enforces is not a contract seems irrelevant to this point.

Moreover, I'm unconvinced that the court is even picking out beliefs on the subject of religion for unique treatment (though so long as it treated them symmetrically I see no establishment issues). Rather they are applying the same standard to religion they do to important cultural practices and other beliefs/traditions people tend to feel extremely strongly about. While for most parents they wouldn't treat ballet in the same way I think it's quite reasonable to think that if both parents were 4th generation ballet dancers who had agreed on the importance of their child being exposed to ballet as a child the court would probably have treated it similarly.

[Suppose] we both viewed atheism as an important factor in the child's upbringing and thereby weigh any church attendance against the parent who choose to do so.

That would be as bad as what the court did. You overlook EV's comment that the "right to change one's mind is especially important for religion, a subject on which people do often change their minds." If a parent acts contrary to what he said that he viewed as an important factor -- whether that be religion or atheism -- then he no longer views it as an important factor.

BruceM, raise your children as you see fit For us we decided before conception that our children would be involved in 2, 4, outside the family activities, those turned out to be church, scouts, music. Our kids were very active in all of these. They dont use drugs,or drink, the dont fight and theive, they havent created any babies yet, they give back to the community by volunteering with youth by mentoring and big sister big brother programs. Their peers are much the same. Not he nihilistic self absorbed brats I see in public today. your writing as an example.The judge said doing something with respect to raising a child is vastly superiour to doing nothing

Suppose the court treated all decisions regarding child rearing the parents had agreed upon during (most of) the marriage as points in favor of the parent who more closely abided by those decisions. If the court applied this rule (weighting based on importance the parties placed on the issue while married) surely you wouldn't think this would pose any 1st amendment issues do you?

Now suppose the court says, "well I don't know how intensely these particular people cared about these decisions but in general religious beliefs or lack thereof tend to be things people feel very strongly about so I'll give decisions about religion a large weighting factor." Where has the court promoted any particular religious belief or violated the 1st amendment in any way?

--------

Note that in the long term it doesn't really matter whether the judge decides to only count preferences about religion that the couples orally agreed should be binding or only doesn't count preferences they say shouldn't be binding. People who really don't want these decisions to be binding can simply choose to specify that their religious preferences aren't meant to be binding.

Surely you aren't claiming that the constitution demands that the default must be that parental agreements on religion aren't a binding commitment that can be considered in a later divorce. Once you agree that it's constitutionally permissable that people make such agreements what words are required surely is incidental.

You didn't address my first question. Would it be a violation of the Establishment Clause for a court to favor a parent because he does not believe in God or follows no organized religion?

As to my second question: are you suggesting a court could simply take judicial notice that religion is bad, as if it's something any rational person would immediately understand? You said, "There are objective facts that prove beyond any doubt that religion is bad." But rather than provide any, you merely rephrased your premise several times and then offered the unfounded opinion that anyone who claims to do good in the name of religion is really motivated by power and money. What does that have to do with whether a church-going parent is more or less fit to raise a child? Can we assume the non-religious parent is necessarily more sincere in their desire to nurture and raise the child?

Suppose that both parties agreed that eating vegetables was good for the child. The plaintiff gets the child to eat carrots and green beans on a regular basis. The defendant is lax and allows the child to eat whatever she wants. Clearly this scenario favors the plaintiff.

Now, theology is definately a far more complex question than eating vegetables, but if both parents profess the importance of church and one isn't very good at following through on it, I don't think the judge is left with much choice in the matter. Like it or not, it's an important issue and if the parents aren't in agreement, the judge has to rule on it somehow. If the defendant had come out and said that the church was bad for the child or that she felt it was wrong to force religion upon a child, this would be a much more interesting case. As it is, I don't see where the judge was left with any other option on that front.

I didn't ignore his comment about the importance of changing your belief but I pointed out that this seems to be a personal value judgement not a constitutional principle. We can argue about whether it would be good to be more encouraging of belief change but so long as belief and non-belief are treated symetrically no church has been 'established.'

Moreover, once you admit that it's constitutional for couple to agree in SOME fashion that if they ever divorce religiosity should be a factor in custody I don't see how you can claim that counting all agreements about religious raising without disclaimers is a constitutional violation.

Dowling:

I suppose my parents (at least my dad). I spent A LOT of time arguing that god didn't exist and the like when growing up (I liked arguing particularly about things where I felt self-evidently right but everyone disagreed with me).

List of books that BruceM needs to read in order to get a feel for truly "violent" literature:

1. The Iliad

...feel free to add as you see fit

Also,
I can not believe that any judge would rule that "constancy" is its own reward. What if the "constant" were attending heavy metal concerts or book clubs for the transgendered? Not a practice that is provably detrimental, but certainly one that is not going to win "parent of the year". So the judge is implicitly saying that religion is a good thing.

I think the comments here that support the court's ruling have the better of the argument.

I add that Professor Volokh attaches too much agency to the child's "preference" to not attend church.

And while Professor Volokh interprets the mother's flagging church attendance as evidence that she has freely chosen to reduce her religiousity, that proposition seems very contestable. You can always rely on the argument/truism that you prefer the things you do, but that's often a radical leftist argument that even folks like Thomas Sowell don't accept fully. In any event, the judge is in the best position to determine this stuff. And it sounds like the judge thought the mother was simply lazy. The mother thought church was important and went to church in the summer. But once those Michigan winters rolled in, she started sleeping in on sundays.

It's possible to view her action as some sort of implicit rejection of religion, but I don't think the Constitution requires that interpretation. Is there any support for that rule of constitutional law?

Suppose the mother had told the judge, "Yes, I still believe religion is very important, and I know I haven't been going to church on sundays because I don't like the cold, but I have been disappointed in myself for my poor church attendance and I promise to do better in the future." Would that change your mind?

I think some deference to the judge is appropriate. Otherwise it looks like anti-religion hysterics.

I think New World Dan's point is a good one as I had typed out a nearly identical post involving "exercise" instead of "vegetables". The point being that if the parents have agreed to raise their daughter with some set of values, religious or otherwise, can the court not favor one parent for more consistently adhering to the values? I suppose one could argue about the magnitude of adherence (attending mass twice a week, versus "merely" weekly).

I have to agree with New World Dan. Everyone is saying that the Defendant could have changed her mind and it's important to respect her ability to change her mind.

But she didn't change her mind. She still goes to church and still sees religion as important from what I can tell...just not as important as her ex-husband does. The evidence for this? She attends church regularly in the summer months (when driving etc are easy), but doesn't in the winter (more hassles driving, dressing self, dressing child, etc.) Thus, the judge is not saying that being religious is better than not being religious. The judge is saying that taking your purported religious commitments seriously is important. I happen to agree (as an agnostic). Don't we want parents who teach their children to act on their beliefs? That being said, I have no doubt that if the mother had actually changed her mind there wouldn't be a different outcome.

Bruce M,
Many studies have shown longer, and healthier lives for regular church-goers. There's a concrete benefit to the child going to church. Where's your concrete (and objective) harm? And no, that the child won't be taught to think logically in your view is not objective.

once two parents generally agree to raise a child religiously, it's in the child's best interests to continue that upbringing

There is no evidence that any of these "best interests" considerations are really good for the child. What if one parent attended church once a week, and other twice a week? There is no consensus in our society about how often to attend church, and this judge has no business using it as a factor.

[Skyler] Second, someone had to win the case, and this is as reasonable as any other excuse when both are basically decent people. There is no mention of either parent being bad for some other reason.

Yes, nearly all the "best interests" criteria are unfounded and constitutionally suspect. The only reasonable outcome is to split the child custody equally.

It's not so much ruling that constancy is desireable anymore than enforcing a contract is. It's simply saying that a parent has some protection from having the rug pulled out from under them when they rely on mutual decisions they made as a couple.

For instance some religious people believe that children who aren't raised properly in their religion will go to hell and would be unwilling to have a child if their partner hadn't agreed to raise it in the religion. I certainly wouldn't have a child I thought was going to be brainwashed as a theist (which is different than just being exposed to theistic ideas). Just as people should generally be able to rely on other person's represenations shouldn't the plan parents relied on when they choose to have the child have extra weight?

Note though I'm saying this under the hypothesis the church would treat atheism symetrically.

hattio1:

A correlation with church attendance and health is a far cry from causation. Most likely this reflects the fact that (since the vast majority of people claim to believe) conscientious risk averse people are more likely to go to church as well as the doctor.

[New World Dan] Suppose that both parties agreed that eating vegetables was good for the child. The plaintiff gets the child to eat carrots and green beans on a regular basis. The defendant is lax and allows the child to eat whatever she wants. Clearly this scenario favors the plaintiff.

No, the argument is completely illogical. The defendant could have observed the child's vegetable consumption and decided that it was adequate. Likewise, it may be rational for a parent to attend church more often in the summer when it is more convenient, and there is no evidence that there is anything bad about that.

Like it or not, it's an important issue and if the parents aren't in agreement, the judge has to rule on it somehow.

No, the judge certainly does not have to rule on how often a 3-year-old attends church. He can just let the parents have joint custody, and let each parent attend church as he or she sees fit.

Since the parties have separated, the Plaintiff is the parent who has actively participated in Emma's religious upbringing while the Defendant has allowed Emma to make the decision on whether she attends church....

IANA Family Lawyer, but it looks to me that the court is saying that the 3 year old child's best interest lies in not being permitted to decide for herself whether she attends church.

The court is expressly denying the religious teaching of Matthew 21:16:

And said unto him, Hearest thou what these say? And Jesus saith unto them, Yea; have ye never read, Out of the mouth of babes and sucklings thou hast perfected praise?

One parent's (even both parents') preference for religious observance should at best be treated like any other recreational activity. Some parents regard going to to see the Red Socks as sacrosanct, but its ridiculous to suggest that the allocation of season tickets should be determinative in a custody dispute.

[Prufrock765] As someone who has done a fair amount of family law work, I am curious as to what you mean by "split the child custody equally".

I mean joint legal and physical custody where each parent gets the child half the time. It is very common now in a lot of states. Even in this Kik case, the parents will be splitting the time equally over the summer. There is no reason why they cannot do the same over the school year.

There was an agreement between the parents at the time of the marriage -- perhaps not contractually binding, but an agreement -- to raise the child as a Catholic. Ceteris paribus, as a matter of equity, would it not be appropriate for the court to grant custody to the party who best honored the original agreement?

Here's a more interesting hypothetical: It was once traditional for the Catholic Church to require an agreement from the non-Catholic partner in a mixed marriage to agree to raise any issue of the marriage as Catholics before agreeing to sanctify the marriage. Suppose the non-Catholic partner changed his/her mind, divorced, and tried to raise his/her children in his/her original religion. In this case there is something very close to a contractual obligation on the part of the non-Catholic partner. Would/could the courts force the non-Catholic parent to raise his/her children as Catholic?

I'm with Chillens (12:11) and think the words he put in the mother's mouth hypothetically do express her feelings. It's not even that the judge is saying "More is better" - but the father hasn't enrolled the child in a convent either.

Most three-year-olds don't "want" to go to church. If the child were older and made a statement like "I don't believe in your church and its teachings" that's more worthy of respect than "wanna stay in bed". ("Staying in bed is worth more to me than going to church because if, as you say, G_d is everywhere, then He is also in my bedroom and I can pray just as well here" is also respectable or even "I get more out of two hours of sleep than I do from the church service", but having dragged children to various things, I know that often it's a matter of how much effort does the parent want to expend.) One of the jobs of a parent is to take a longer view of things than the child.

I would not fault the court for citing churchgoing as a factor in determining custody if it is merely one more datum to distinguish a constant, delivering parent from a parent who simply lets a 3.5-year-old make her own decisions. I don't know the facts, if this is the case... but if it is, I think the judge made an ok decision. No 1st ammendment issue here, just the child's best interest.

EV: "One wouldn't hold it against a parent that she acceded to the 3½-year-old's request to stop taking ballet lessons."

I would, if the mother previously stated how important ballet was to the proper upbringing of a child. Did she change her mind? Why? Because her daughter was whining?

Consider also that the mother does not regularly attend church, even though she still claims that this is an important factor in her own life. But apparently, it's only important as long as the weather isn't too chilly. Child issues aside, this behavior suggests that the mother does not follow through on her claimed values. The church issue sounds like a reasonable datum -one factor- in judging who can better raise the child.

I do not see a constitutional issue, and I do not necessarily see bias.

Further, even if the mother does not actually care about church, does she even care about custody of her kid? If I was a divorce lawyer or whatever, and both my client and his ex claimed to value church, my first advice would be for my client to attend church with his kid every friggin week.

It seems like the mom isn't even trying. "I'm a very religous person" is a vapid platitude. "I take my kid to church every week" is quantifiable. Which is a better measure of who lives out their claimed values?

Further, even if the mother does not actually care about church, does she even care about custody of her kid? If I was a divorce lawyer or whatever, and both my client and his ex claimed to value church, my first advice would be for my client to attend church with his kid every friggin week.

Why stop there? Most Catholic churches have services every day. Your reasoning would also suggest that the parents drag the 3-year-old to church every day, in order to really impress the judge.

Suppose the mom takes the kid to ballet lessons, but only when the weather is not too chilly. Would you then argue that she should lose her custody rights because she is insufficiently committed to her stated goals?

This case is just another example of the family court sticking its nose where it does not belong. Let the parents make whatever decision they wish. If it means that the kid only attends church on alternate weeks or only in sunny weather, so be it. Judges should not even listen to evidence like this.

Some people seem to take the view that the mother is properly faulted for saying one thing (church is very important) and doing another (not taking the child to church regularly). I'm not sure that this would be a sensible position for the court to take, but before we can evaluate that, wouldn't we need to see some specific evidence that the mother is being inconsistent? Here's what the trial court decision said about the mother's (Defendant's) beliefs and relevant actions (emphasis added):

[R]eligion was an important factor to both parties when they were first married and both felt strongly about raising [their daughter] in the church....

[Mother] also attends church at Saint Paul's in Big Rapids which is where [the daughter] was baptized.

[Mother] was more regular in attending church during the summer, however, has not been regular in attendance during the winter months.

[Mother] has allowed [the daughter] to make the decision as to whether or not she attends church.

[Mother] does not take [daughter] to church on a regular basis ....

[Mother] does not feel that it [regular church attendance] will make a difference.

[Mother] agreed that religion was an important factor when they were first married and when they started their family....

So where's the supposed inconsistency between mother's current "claimed values" and her actions? We see mother once thought church attendance was important. Now she "does not feel that it will make a difference" to the child, and in fact doesn't attend church regularly.

Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. Where's the inconsistency / hypocrisy / failure to live up to claimed values?

RS: "This case is just another example of the family court sticking its nose where it does not belong. Let the parents make whatever decision they wish."

But the courts have stuck their nose in, and I say that parental claimed-church-values should be held up to the same scrutiny as any other claimed-value.

Things get ridiculous with the gub-ment sometimes, and I am a fan of limited government... but I think most people agree that family courts making choices and ruling for the child's interest are a necessary evil.

So while we're being necessarily evil, we may as well scrutinize all claimed-values, and what effect they might have on the child...

EV: "Sounds like someone who has changed her views about organized religion, and no longer finds church attendance to be as important as she once did. Where's the inconsistency / hypocrisy / failure to live up to claimed values?"

This is a reasonable conclusion. But this behavior is also consistent with someone who utters vapid platitudes- someone who wants to have it both ways. It sounds like the mother is trying to sell herself as someone who values traditional religion, but just can't 'find the time' to get to church. Leaving the choice up to the kid is an excellent way for an adult to not have to make a choice herself.

In the absence of facts, I'm more cynical than EV.

In the face of this impasse, I'll repeat my child-custody-as-a-game-to-be-won position. Even if you don't value church anymore, if you care about your kid, you'll take concrete steps to back up your case that you're a good parent. The father takes the kid to church. Quantifiable. The mother lets her sleep in. Point, father.

The mother used to believe in church, but no one knows what she believes now, least of all her daughter. The article doesn't say that the mother enrolled her daughter in the Richard Dawkins coloring book club, or arranged playdates on Sundays, or did anything to make up for the gap of claimed values for herself and her daughter. So EV believes her values changed. To what?

EV, I'll bet you a week's wages that what the daughter is getting instead of church is 'Dora the Explorer.'

I'll disagree with EV in that the key issue of the religious preference was "stability." This was a close case. The main factor against the mother was that she moved out of the family home, and that the 180 mile custody shuffle of the child was disrupting. The religious factor is just a straw extra on the father's side. I'd have preferred if the judge hadn't thrown in that particular straw. It is my understanding that the bias, particularly with young children, is routine. Thus I go with the ballet argument. It's the regularity of the activity, not the religious faith. At 180 miles someone had to win. Had it been 5 miles, we'd be talking about joint custody, and whoever had the child that weekend would decide on church attendance. If unconstitutional, in criminal terms, the faith statement was harmless error.

I know people who attend church more often than once a week. It is not a straw man.

Having family courts intervene in matters like church attendance and ballet lessons is certainly not necessary. Many parents, both married and divorced, disagree on these matters and still rear their kids just fine without any court interference.

I suppose some family court judges figure that as long as they are unconstitutionally sticking their noses into some parental decisions, they as might as well stick their noses into others. But they certainly are not acting in the child's best interest when they do so, because all the evidence points to the child's best interest being leaving these decisions to the parents.

Roger,
re: "splitting custody equally"
Does this not strike anyone else as almost per se child neglect? I have had clients who suggested this as a possible custody arrangement. I then asked them whether they would agree to live for, say, a year under a regime in which they changed their residence every 5 or 10 days. Very few thought it would be a life they would choose.

Sean: "Let's say Dad took the child once a day and Mom took the child every Sunday."

That's a hypothetical. The reality is that both parents once claimed that church attendance is important. The father delivers, while the mother complains about the weather. While this certainly isn't enough to decide custody, it does point toward who lives out their stated values.

The mom's behavior is consistent with someone who utters vapid platitudes, while the dad racks up quantifiables. If the mom's values changed, then she is free to show how she lives them out. The article is silent on this issue, though I'm sure it'd be mentioned if the mom offered something concrete to make up for her supposedly lost church values.

Come on, people. We all know she's letting the kid sleep in on Sundays and watch Dora the Explorer. If that's not the case, if the mom cares about winning custody, then she'd have a trail of quantifiables just like the dad.

The father claimed a value, stuck to it, and provided quantifiables. The mother whined about the weather. Point, father.

The act of babtism is a commitment to raise the child in the church. I know its not a contract. Both parents thought it important enough to have the child babtized. The father is following thru with the resposibilities of the parents with the assumption that the church would pick up in his absence for the continuing religious training of the child. aside all the religious stuff. The father seems to be putting the interests of the child before his own interest. this is just one factual thing the judge could see, and both parties agreed to who was doing what, not a 'he said, she said' I feel like EV has taken a much too dispassionate tone in regards to parenting a child. It truely is the smallest of things that are important and a 3.5 year old disperatly needs constants in her life. Parents that let 3.5 year olds make their own decissions are setting the child up to fail

Nobody took up my earlier point about the value of attending church services at a very young age. The mother may have observed the strain on a small child sitting through services geared to adults and decided not to force the issue until the child was old enough to follow the liturgy. What she said before she had children would therefore be irrelevant, and failure to attend regularly wouldn't necessarily mean any change in underlying beliefs.

In my experience, middle-sized kids often like Catholic church. It can be interesting. But little ones don't know why they are there. It may be good to take them occasionally so they get used to the place, but what do they get out of it really?

rc: You say it "sounds like the mother is trying to sell herself as someone who values traditional religion," but nothing in the court's opinion says that the mother is saying so. Rather, the mother is expressly saying that she "does not feel that it [regular church attendance] will make a difference." She used to care about church attendance. Now she's changed her mind. I'd think she'd be entitled to do so.

As to your argument that, "Even if you don't value church anymore, if you care about your kid, you'll take concrete steps to back up your case that you're a good parent," that's an odd sort of bootstrapping. Perhaps the mother assumed, given the First Amendment, that her change of religious attitudes wouldn't be held against her. To say that she's a worse parent because she didn't anticipate the court's preference for greater religious observance -- and that the court's reasoning this way makes the court's preference for greater religious observance constitutional -- strikes me as quite wrong.

Finally, you say, "The mother used to believe in church, but no one knows what she believes now, least of all her daughter." That, I think, is the best evidence that there is indeed a religious preference going on: Those who visibly believe in religion are preferred over those who keep their religious beliefs more quiet, or are struggling with their religious beliefs, or have moved from religiosity towards religious uncertainty rather than out-and-out "Richard Dawkins coloring book club" agnosticism. And absence of religiosity is seen as creating a "gap of claimed values," even though parents of many 3½-year-olds quite plausibly believe that values are best taught in the home rather than either at church or in an atheist equivalent of church.

Many studies have shown longer, and healthier lives for regular church-goers. There's a concrete benefit to the child going to church. Where's your concrete (and objective) harm? And no, that the child won't be taught to think logically in your view is not objective.

dogs and other pets have been shown to have the same effect. now we know that having a dog is as beneficial as going to church. perhaps even more so...you don't have to walk a church every day.

If I were the judge, I would have made a finding that religion is bad for children and given the less religious parent primary custody. - Bruce M

And that wouldn't violate the Establishment Clause? Also, on what basis can a judge in a particular custody dispute find that "religion is bad"? - Rock Chocklett

I think that Rock is getting at the real dilemma here. So Prof. Volokh says that a judge can't favor the more religious parent just because of religious beliefs, because that violates the Est.Cl. But why could the judge favor the less religious parent, penalizing the more religious parent just because of religious beliefs? Wouldn't that also violate the Constitution?

I think this fact scenario illustrates the illogicality of Est.Cl. jurisprudence under Lemon, that tries to create a difference between religion and secularism. In essence, they aren't different, because they both describe worldviews from which one determines how one should or should not act in society.

Favoring secularism is not merely taking a position neutral on religious beliefs and permitting all religious worldviews to operate on equal footing; favoring secularism is taking a position antagonistic to religious beliefs, and in so doing, promoting a worldview in opposition to that of religions.

A lot of posters above have been saying the mother is just plain "lazy" for not taking her child to church in the winters. Yet you can look at it another way and make the mother come out like a saint compared to the father. it is much more dangerous to drive in the winter. the mother has decided that a live child who misses church every once in a while is preferable to a dead child who makes it to church every week. the father prefers the opposite. now which parent has the child's best interests in mind?

Now's a good time to mention that any lawprof is probably more thoughtful than I am... but this is the internets- I won't let such realities stop me.

EV: "To say that she's a worse parent because she didn't anticipate the court's preference for greater religious observance -- and that the court's reasoning this way makes the court's preference for greater religious observance constitutional -- strikes me as quite wrong."

If religious preference is indeed what's going on, then that's wrong. But my cynical side sticks to an alternate explanation:

The father claimed a value, stuck with it, and provided quantifiables. To counter that, the mother provided... nothing. Except that maybe her beliefs changed (though I don't know then why she's be trying to justify herself by saying she attended church in the summertime), and that she'll just leace the choice up to the 3.5-year-old kid. Point, father.

This is not necessarily religious favoritism. But at the very least, it's belief-in-something-and-following-through-with-it favoritism. And that's a good thing.

I think rc was saying that the mother is trying to have it both ways. First she says she's religious, then when it gets cold she misses church, the judge asks her about the change in behavior, and she says "oh it doesn't make a huge difference." Isn't the judge entitled to decide that her explanation is lame and she has not made the kind of religious re-examination that you describe?

Overall, I think you are deducing supposed facts from the court's language, which does not strike me as an appropriate analysis. I think the judge is entitled to a lot of deference on this stuff, especially when it goes to credibility.

Professor Volokh;
You believe that her not going to church shows that she has changed her beliefs. What does her not going to church only in the winter show? She goes regularly in summer, but not in winter. I think hypocrisy and/or not living up to claimed beliefs is the much more likely explanation than a changed religious belief. Actually, given that both of them weren't going much before the divorce, and both went during the summer after the divorce, but only dad went during the winter after the divorce, my true assumption is that Plaintiff was willing to listen to his lawyer but Defendant wasn't. But, we have to pretend the facts are as the trial court found them.

That was "straw" not "straw man." The quoted passage in the EV was just a small weight in favor of the the father is a very balanced cased. The biggest weight was the mother moving 180 miles away. The initial joint custody agreement was untenable because of the distance. Someone had to win primary custody. The trial court favored 1)the parent stayed in the family home and 2) BTW, he's more consistant in dealing with the child on one issue.

To focus on the throw in straw, and then make a constitutional issue out of what the father happened to be more consistent in is sophistry. Child custody are tough decisions, and stability happens to be a major factor. Trying to make a constitutional case out of this doesn't just cut the child in half, it rips her to shreads. The less court time the better.

hattio1: I would think that someone who goes to church only when it's convenient, or when the child doesn't object too much, tends to be someone who thinks church is nice but not very important. My sense is that quite a few mildly religious people are that way -- they think church can be potentially valuable for their children, can be spiritually helpful for them, and can provide a helpful community, but that it isn't tremendously important.

There's nothing hypocritical about that view: It's just a view that reflects a mild level of religious commitment and some but not much value being placed on organized religion. Someone who has a mild level of religious commitment, or no religious commitment at all, ought not be disfavored because of this relative to someone who has a deeper level of religious commitment.

As to raising [the daughter] in her religion, the court concludes that this factor favors the plaintiff.

Can somebody explain to me in exactly what sense a 3-and-a- half year old has a religion?
What if, at the time of the marriage, both parents were active Republicans (or Democrats), but the mother has since become less politically involved? Would the judge now favor the dad, on the grounds that he'll see to it that the little girl will be raised in "her" party?

I don't see how you refute the implied conclusion of the trial judge -- who, unlike any of us, had the benefit of observing the demeanor of the parties and making meaningful credibility determinations about their testimony -- to the effect that the mom is just being a slacker. That, for now, she's slacking "without disruption" is a monumentally unpersuasive argument. My household environment would have had substantially less "disruption" if I'd abandoned my insistence on things like oral and physical hygiene, healthy diet, regular bedtimes, and doing homework.

And in general, you're over-reading the Establishment Clause to require the state to be hostile to religion. If the dad's prior (and, originally, joint with the mom's) commitment were to Zoroasterism or Buddhism, or to committed and thoughtful atheism or agnosticism -- instead of to Catholicism -- then very fact that that commitment, and the discipline and devotion required to demonstrate and practice per one's convictions, is a legitimate factor that the trial judge can consider in determining the best interests of the child. And by doing so, he's neither favoring nor disfavoring any particular religion, or even "religiosity" as such -- but rather, favoring commitment and discipline.

Pointing out that the dad could continue to expose the child to religious views during "his time" completely ducks the issues surrounding the question of who ought to be the primary custodial parent. That's an excuse that can be used every time to support any decision, good or bad: "Oh, the other parent can balance that out." Well, that's reading the family law to positively encourage disputatious and inconsistent conduct between parents.

Finally, Prof. V, with due respect, you're being positively silly in giving any weight to the supposed preference of a 3-1/2 year old in making cosmically significant decisions about said child's own future.

No Church = No Sacraments.
No Sacraments = No Eucharist.
No Eucharist = No Catholic.

It's cute your post above transferrig the facts to the Jewish religion ... I mean why can't they be like the High Holiday observing Jews, aka Cheesters (Christmas and Easter)

Sadly, that doesn't work so well in the Catholic Church. It might for some Jews, but if you miss your Sacraments and don't observe the Sabbath by going to Church and receiving the Eucharist, you're seen as just playing dress up on Christmas and Easter. In it for the cultural traditions.

Clearly, this couple celebrated the Sacrament of Matrimony in the Church. And they had their baby baptised, also a Sacrament. No I wouldn't deign to pretend to know the Jewish rules, as I'm not one, but if you think this child can just "show up" when she's of age to receive her First Holy Communion, and later Confirmation (like you seem to imply some Jews can do come Bar Mitzvah time, you're sadly mistaken.)

Without making all the Sacraments, this child also will not be permitted to be eligible for the Sacrament of Matrimony in a Church either.

In short, honoring the Sabbath -- to Catholics -- means going to Church and receiving the Eucharist, once you've received you've made your First Holy Communion.

The secular press seems to think there's such a thing as "drop in Catholics" no doubt because they think so many practice birth control, and plenty get divorced. But... what I've written above really is the basics.

I agree with David B. here. Even if they're divorcing now (and something tells me that was mother's idea more than father's, who seems still committed to his faith), they had an agreement about the upbringing of this child. And it should be honored. Otherwise, it's quite possible this child -- this girl -- will be given over to the secular religion, which nowadays teaches many girls to be little sluts, that society values them for their sexual being, their bodies, and not something more spiritual.

Sadly, I think you're bringing too much of your ethnic Judaism, but no religion thanks!, viewpoints into this. Not comparable to Catholicism. Not that easy to switch the hypothetical. Also, you out to drop the "scientific rationalism" part as well. It's really not an "either/or". Plenty of practicing Catholics strongly believe in scientific rationalism too -- something about great minds being able to hold two seemingly contradictory thoughts in their minds at once -- Catholics, unlike other Christians, are able to reconcile their faith with modern scientific teachings, rationalism so to speak. Maybe they just have a deeper faith that the two mindsets can reconciled (not literally all the Old Testament stories, like Genesis). You know Einstein had a great respect for faith, don't you EV?

David B. is correct -- they made an agreement, for the sake of the child's future, stick to it, Mama. (Sounds to me like she just got lazy in her committment -- in summer but not in winter? Too cold to go out? Too early and you want to sleep in?) The decisions made now will affect the child in receiving her Sacraments -- even though as an adult, she can "backtrack" and go for the adult education and receive them, as many converts do who say, want to marry a practicing Catholic.

In short, it's not so easy as "dropping in" like some Jews seem to do, because honoring the Sabbath clearly means receiving the "Eucharist", and you can't just do that on Christmas and Easter, and on fair weather days.

Hope this helps... (Maybe this is a case of your non-diverse lineup, and probably friendship set, interfering with your honest analysis skills? Kudos to David B. for "getting it" though, though I doubt he's more versed in Catholicism, just thought a bit deeper about the facts as they lie. Like in golf, you got to play the ball where it lies, not move it around to give yourself a better position to make your argument; get that one?)

I only see one factual finding in this excerpt that the parties disagree about:

However, the court agrees with the Plaintiff that this is not a decision which should be left up to a young child

I see why EV might take issue with this statement, since it suggests that the court is advocating forced religious indoctrination of a child.

But I read this as a broader statement that transcends religion. The Court is simply saying that it is not good parenting to leave decisions about personal values in the hands of a 3 1/2 year old.

It's no different from asking a child whether he prefers that his parents use Love and Logic or time-outs to discipline. The child doesn't understand the nature of that choice — it's a decision that is best left to the parents after research and thought. And, like the mom in this case, a parent who doesn't understand that is abdicating her role.

Brian K (mail):
...it is much more dangerous to drive in the winter. the mother has decided that a live child who misses church every once in a while is preferable to a dead child who makes it to church every week...

I live near Kalkaska, and it has the worst winter weather and road conditions of anywhere I have been through frequently in the winter - more than half the time, there is enough ice on the roads or blowing snow to definitely increase the danger of each trip above the normal winter conditions in Michigan. If God intended Michiganders to attend church regularly in winter, she wouldn't send us so much snow.